The defendant in Marks v. Crunch San Diego has filed a petition for certiorari with the U.S. Supreme Court seeking review of the Ninth Circuit’s September 2018 decision interpreting the TCPA’s automatic telephone dialing system (ATDS) definition.

In Marks, a unanimous Ninth Circuit three-judge panel held that the TCPA’s definition of an ATDS includes telephone equipment that can automatically dial phone numbers stored in a list, rather than just phone numbers that the equipment randomly or sequentially generates. This decision departed sharply from post-ACA International decisions by the Second and Third Circuits, which had narrowed the definition of an ATDS. In its petition for certiorari, Crunch points to the circuit split created by the Ninth Circuit’s decision as a reason for the Supreme Court to grant its petition.

On October 3, 2018, following Marks, the FCC issued a notice asking for comment on what constitutes an ATDS. The request was issued as a supplement to the notice that the FCC had issued in May 2018 in reaction to ACA International seeking comments on several TCPA issues. The comment period on the FCC’s October 3 notice closed on October 24.

Should the Supreme Court grant Crunch’s petition for certiorari in Marks, the FCC might wait for the Supreme Court to issue a decision before it provides any further guidance or interpretations regarding the scope of the ATDS definition. (Conversely, the Supreme Court might prefer to wait for the FCC to weigh in.) Another potential factor impacting the FCC’s timing is the pendency of a Supreme Court decision in PDR Network v. Carlton & Harris Chiropractic. That case involves the TCPA prohibition on unsolicited fax advertisements. The question the Supreme Court agreed to decide is whether the Hobbs Act precluded the district court from conducting a Chevron analysis of the FCC’s TCPA interpretation of what is an “unsolicited advertisement” and instead required it to defer to the FCC rule. Oral argument in PDR Network is scheduled for March 25, 2019.

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